Citation Nr: 9827275
Decision Date: 09/11/98 Archive Date: 09/17/98
DOCKET NO. 95-13 044A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a gastrointestinal
disorder.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from October 1990 to April
1992.
This case comes to the Board of Veterans’ Appeals (Board) on
appeal of a May 1995 rating decision of the Atlanta, Georgia,
Regional Office (RO) of the Department of Veterans Affairs
(VA).
The case was remanded by the Board in October 1997.
Service connection for Meniere’s syndrome, an issue remanded
by the Board in October 1997, was granted by the RO in a June
1998 rating decision. That matter is no longer an issue
before the Board. Grantham v. Brown, 114 F 3rd 1156 (1997)
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his gastrointestinal disorder is
the result of service. He points out that he served in the
Persian Gulf in support of Operation Desert Storm where he
was exposed to numerous chemicals. He believes that his
gastrointestinal disorder is related to this service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the claim for service
connection for a gastrointestinal disorder is not well-
grounded, and the appeal is denied.
FINDING OF FACT
The veteran’s gastrointestinal disorder has been shown to be
due to erosive gastritis, chronic gastric ulcer and
gastroesophageal reflux disease that has not been
etiologically related to service.
CONCLUSION OF LAW
The veteran has not submitted evidence of a well-grounded
claim regarding service connection for a gastrointestinal
disorder, including chronic ulcer disease, gastroesophageal
reflux disease and erosive gastritis. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.317 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131. In addition, certain chronic
diseases, including gastric ulcer disease, may be presumed to
have been incurred during service if they first become
manifest to a compensable degree within one year of separation
from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38
C.F.R. §§ 3.307, 3.309. If a condition noted during service
is not shown to be chronic, then generally a showing of
continuity of symptoms after service is required for service
connection. 38 C.F.R. § 3.303(b).
The threshold question to be answered concerning this issue is
whether or not the veteran has presented evidence of a well-
grounded claim; that is, one that is plausible, meritorious on
its own, or capable of substantiation. 38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he
has not presented such a claim, his appeal must fail and there
is no duty on the VA to assist him in the development of his
claim because such additional development would be futile.
Id.
In order for a claim to be well grounded, there must be
competent evidence of current disability, evidence of the
incurrence or aggravation of a disease or injury during
service, and a nexus between the in-service injury or disease
and the current disability. That means that for a claim of
service connection, there must be evidence of a current
disability, disease or injury during service and a link
between the two. Furthermore, the evidence needed to
establish service connection for any particular disability,
must be competent. That is, an injury during service may be
verified by medical or lay witness statements; however, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause or symptoms during service, a competent
opinion of a medical professional is required. Caluza v.
Brown, 7 Vet. App. 498 (1995).
The veteran has claimed service connection for a
gastrointestinal disorder as a result of his service in the
Persian Gulf in support of Operation Desert Storm. The
record shows that he served in the Southwest Theater of
Operations during the Persian Gulf War.
(a)(1) Except as provided in paragraph (c) of this section,
VA shall pay compensation to a Persian Gulf veteran who
exhibits objective indications of
chronic disability resulting from an illness or combination
of illnesses manifested by one or more signs or symptoms such
as those listed in paragraph (b) of this section, provided
that such disability:
(i) became manifest either during active
military, naval, or air service in
the Southwest Asia theater of
operations during the Persian Gulf
War, or to a degree of 10 percent or
more not later than December 31,
2001; and
(ii) by history, physical examination,
and laboratory tests cannot be
attributed to any known clinical
diagnosis.
(2) For purposes of this section, "objective
indications of chronic disability" include
both "signs," in the medical sense of
objective evidence perceptible to an examining
physician, and other, non-medical indicators
that are capable of independent verification.
(3) For purposes of this section, disabilities that have
existed for 6 months or more and disabilities that
exhibit intermittent episodes of improvement and
worsening over a 6-month period will be considered
chronic. The 6-month period of chronicity will be
measured from the earliest date on which the pertinent
evidence establishes that the signs or symptoms of the
disability first became manifest.
(4) A chronic disability resulting from an undiagnosed
illness referred to in this section shall be rated using
evaluation criteria from part 4 of this chapter for a
disease or injury in which the functions affected,
anatomical localization, or symptomatology are similar.
(5) A disability referred to in this section shall be
considered service connected for purposes of all laws of
the United States.
(b) For the purposes of paragraph (a)(1) of this section,
signs or symptoms which may be manifestations of undiagnosed
illness include, but are not limited to:
(1) fatigue
(2) signs or symptoms involving skin
(3) headache
(4) muscle pain
(5) joint pain
(6) neurologic signs or symptoms
(7) neuropsychological signs or symptoms
(8) signs or symptoms involving the
respiratory system (upper or lower)
(9) sleep disturbances
(10) gastrointestinal signs or symptoms
(11) cardiovascular signs or symptoms
(12) abnormal weight loss
(13) menstrual disorders.
(c) Compensation shall not be paid under this section:
(1) if there is affirmative evidence that an undiagnosed
illness was not incurred during active military, naval,
or air service in the Southwest Asia theater of
operations during the Persian Gulf War; or
(2) if there is affirmative evidence that an undiagnosed
illness was caused by a supervening condition or event
that occurred between the veteran's most recent
departure from active duty in the Southwest Asia theater
of operations during the Persian Gulf War and the onset
of the illness; or
(3) if there is affirmative evidence that the illness is the
result of the veteran's own willful misconduct or the
abuse of alcohol or drugs.
(d) For purposes of this section:
(1) the term "Persian Gulf veteran" means a veteran who
served on active military, naval, or air service in the
Southwest Asia theater of operations during the Persian
Gulf War.
(2) the Southwest Asia theater of operations includes Iraq,
Kuwait, Saudi Arabia, the neutral zone between Iraq and
Saudi Arabia, Bahrain, Qatar, the United Arab Emirates,
Oman, the Gulf of Aden, the Gulf of Oman, the Persian
Gulf, the Arabian Sea, the Red Sea, and the airspace
above these locations. 38 C.F.R. § 3.317.
Review of the service medical records show that in December
1991, the veteran had an episode of vomiting that he
attributed to “bad pizza.” The assessment was acute
enteritis.
Medical records of treatment that the veteran received
subsequent to service includes a report of an upper
gastrointestinal series study (UGI) performed at a private
facility in May 1994, that showed an ulcer along the lesser
curvature of the antrum of the prepyloric area and an ulcer
in the duodenal apex. Other superficial erosions were
suspected in the duodenal bulb. A July 1994 statement of
Thomas P. McGahan, M.D., shows that the veteran was treated
at that time for gastric ulcer and gastroesophageal reflux
disease. A UGI, dated in July 1994, showed superficial
erosive gastritis.
An examination was conducted by VA in October 1994. The
diagnosis was reflux esophagitis with gastric ulcers, history
of, presently quiescent.
The veteran testified at a hearing in March 1997. At that
time, he testified concerning his service in the Persian Gulf.
He explained his belief that his gastrointestinal disorder was
related to that service.
Regarding the veteran’s claim that his gastrointestinal
disorder should be service connected as a result of his
Persian Gulf service, it is important to note that in the
above referenced regulation, which applies to this
contention, one of the basic criteria for service connection
is that the condition may not be attributed to any known
cause. Review of the medical evidence of record shows that
the veteran’s gastrointestinal disorder has specific
diagnosable causes, that is, ulcer disease, gastroesophageal
reflux disease and erosive gastritis. Therefore, service
connection cannot be established based on the regulations
applicable to “undiagnosed illness” in veterans of the
Persian Gulf War.
Nevertheless, service connection could still be established if
it shown that the claimed disorder is the result of the
veteran’s service. Regarding this aspect of the veteran’s
claim, to be deemed well grounded, a claim must be supported
by evidence, not just allegations. Tirpak v. Derwinski, 2
Vet. App. 609 (1992). This evidence must include competent
medical evidence of causality between incidents of service and
the disability for which he is claiming service connection.
Grivois v. Brown, 6 Vet. App. 136 (1994). None of the medical
evidence of record relates the veteran’s diagnosed
gastrointestinal disorders to his period of active duty.
While the veteran has given sworn testimony to the effect that
he believes that there is a relationship between service and
his claimed disabilities, it is noted that he is a layman,
and, as such, is not competent to give an opinion requiring
medical knowledge such as involved in making diagnoses or
explaining the etiology of a condition. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
After review of the entire evidence of record, which consists
of four volumes of documentation, the Board is unable to find
a plausible claim for service connection for a
gastrointestinal disorder. Therefore, the claim must be
denied.
ORDER
The claim for service connection for a gastrointestinal
disorder is denied.
A. BRYANT
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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